MIGRATION – Delegate’s decision – points test for skilled permanent residence visa – language assessment where no examination – points for employment experience – relevance and effect of PAM guidelines – no jurisdictional error shown.
The applicant must pay the respondent’s costs in the amount of $5,000.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG2103 of 2005
RAVI KUMAR VISHNUMOLAKALA
Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
REASONS FOR JUDGMENT
This is an application filed on 9 August 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of a delegate of the respondent dated 19 July 2005, which refused an application for a Class BN subclass (136) Skilled – Independent permanent residence visa.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Case
[2006] FMCA 1209
Decision Date
CaseChat Overview and Summary
The case of Visnumolakala v Minister for Immigration involves the applicant challenging the refusal of a Class BN subclass (136) Skilled – Independent permanent residence visa. The application was filed under s.483A of the Migration Act 1958 (Cth), now repealed but not affecting this proceeding. The applicant sought judicial review of the delegate's decision dated 19 July 2005, which was refused on 9 August 2005. The Court was limited by Part 8 of the Migration Act, meaning it could only set aside the decision if it found a jurisdictional error, without the power to decide the merits of the visa application. The key criterion for the visa, that the applicant must be outside Australia when the visa is granted, meant the applicant did not have a right to merits review by the Migration Review Tribunal. The Court noted that the delegate was not obliged to provide full written reasons for the decision, complicating the applicant's challenge.
The legal issues before the Court included whether the delegate made a jurisdictional error in her assessment of the applicant's qualifications and employment history, and whether the delegate properly considered the evidence and submissions presented by the applicant's agent. The Court examined the statutory framework and relevant case law to determine the extent of the delegate's obligations in providing reasons and assessing evidence. It was established that the delegate had no duty to provide comprehensive explanations, which posed challenges for the applicant in proving any procedural errors.
The Court found no jurisdictional error in the delegate's decision. The evidence presented did not compel the conclusion that the delegate failed to consider the applicant's qualifications and employment history adequately. The Court also determined that the delegate was not required to provide detailed written reasons for her decision, thereby upholding the delegate's discretion in this matter. The applicant's arguments concerning procedural shortcomings were not substantiated by the evidence before the Court.
The application was dismissed, and the applicant was ordered to pay the respondent’s costs in the amount of $5,000. The Court upheld the delegate's decision, finding no jurisdictional error and affirming the limitations on the Court's review powers.
Orders
Orders of the court
1.
The application is dismissed.
2.
The applicant must pay the respondent’s costs in the amount of $5,000.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
This is an application filed on 9 August 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of a delegate of the respondent dated 19 July 2005, which refused an application for a Class BN subclass (136) Skilled – Independent permanent residence visa. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8). The Court’s powers are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the delegate’s decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant qualifies for the visa. One of the criteria for the visa was “the applicant must be outside Australia when the visa is granted” (Sch.2 cl.136.411 of the Migration Regulations 1994 (Cth) (“the Regulations”)). The consequence is that, although the applicant was present in Australia when applying for the visa and may still be here, he did not have a right of merits review by the Migration Review Tribunal (see s.338(2)(a)). It was not suggested by the Minister that there was any discretionary reason for refusing relief, if I were satisfied that the delegate made a jurisdictional error. A further consequence of this criterion was that, although the delegate was obliged to notify the applicant of the visa criteria which she considered had not been satisfied, she was under no obligation to “give written reasons … why the criterion was not satisfied” (see s.66(2)(c) as modified by (3)). Thus, although a “decision record” is in evidence before me, it is apparent that this was intended to provide only a cursory explanation of the decision. In the absence of a duty on the delegate to explain fully how evidence was assessed, it becomes difficult to draw inferences from the absence of discussion of evidence or submissions presented by the applicant’s agent, that the delegate failed to take these things into consideration (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and Vanstone v Clark (2005) 147 FCR 299 at 359‑360). A similar evidentiary problem faces the applicant when challenging the procedural decisions taken by the delegate, since she was under no obligation to explain how she regarded relevant provisions in the Departmental Procedures Advice Manual (“PAM”). The applicant’s application for the visa was lodged on 13 January 2004 by his migration agent. It presented evidence of the applicant’s Indian qualifications in science and computer programming, and his subsequent employment in India between 1996 and 2002, in the United Kingdom between 2002 and 2003, and in Australia since 2003. It nominated the skilled occupation upon which he sought permanent migrant entry to Australia as “analyst programmer” ASCO code 2231‑17. There is no evidence before the Court to explain this occupation, or its distinctions from other occupations in the field of computer programming.